Whenever you handle a post conviction case, you are constrained to use the record and files that the prior attorney used. In situations like this, you must get authorization to obtain prior attorneys files as well as to talk to all prior counsel about their work on the file, including their strategy and research when representing someone. Once you have the authorization, you can request a copy of the client file, as well as the file of any appellate counsel that was involved with the case.
Outside of prior counsel, you should also get a full certified copy of the clerk file from the case.
After you have gotten all the files and reviewed them, it is time to turn your attention to creating an investigation plan. Your investigation plan has 2 distinct sections. The first is YOUR investigation into the defenses that should have been raised. The second is your investigation into an objective view of how counsel acted.
If mental state was a possible defense or mitigating factor in underlying counsel’s notes or after your consultation with your client, you should obtain a mental state assessment and any forensic testing and expert witnesses that are needed to bolster your claim. Sometimes it becomes necessary to file a motion for more time to accomplish all your tasks.
The last part of the process is to file your amended petition. This is done after you have identified all the valid viable avenues for success.